If you were born in Mainland China and are applying for a U.S. green card, you will need to submit a China notarial birth certificate (NBC). That’s true regardless of whether you are filing a Form I-485 (Application to Adjust Status) with U.S. Citizenship and Immigration Services or are applying for an immigrant visa at a U.S. consulate abroad. See How to Apply for a China Notarial Birth Certificate – Chodorow Law Offices (lawandborder.com)
This article discusses what to do if the NBC is unobtainable, in that an application for the NBC is denied for reasons that cannot be overcome.
Contents
This article covers:
A. Common Situations Where an NBC Is Unobtainable
Usually, a person with a medical certificate of birth (出生证公证 chushengzheng gongzheng) should be able to get a Type 1 NBC, as explained here: How to Apply for a China Notarial Birth Certificate – Chodorow Law Offices (lawandborder.com)
But some people born in Mainland China have no medical certificate of birth because either (a) they were born before Jan. 1, 1996, or (b) their birth was not registered with the authorities.
A person with no medical certificate of birth will need to apply for a Type 2 NBC, as explained here: How to Apply for a China Notarial Birth Certificate – Chodorow Law Offices (lawandborder.com). They will need to prove the circumstances of their birth, meaning their name at birth, gender, date and place of birth, parents’ names. Most commonly, that is proved through the following documents:
- Hospital birth certificate (出生证明书).
- Record issued by the Household Registration Department of the local Public Security Bureau (公安局户籍部门).
- Evidence of the circumstances of birth found in the applicant or their parent’s personnel file (人事档案) held by the personnel department of a work unit, a school, or a sub-district office (街道办事处).
- One-child certificate issued (独生子女证) by the provincial health and family planning commission beginning 1979.
Common reasons why those documents may be unavailable include:
- There is no hospital birth certificate because the child was born at home.
- There is no record of household registration with the Public Security Bureau because (a) the applicant was born in the 1950s or earlier (when registration was not required), then left Mainland China; or (b) the birth was not registered because it was in violation of family planning laws.
- The applicant never had a personnel file because they left China before the 1970s or before completing middle school.
B. USCIS and State Department Rules for When an NBC Is Unobtainable
Your claim that an NBC is unobtainable must be proven to the USCIS officer’s satisfaction. 8 C.F.R. § 103.2(b)(2) (USCIS); 9 FAM 504.4-4(F)(c) (DOS).
The best evidence that an NBC is “unobtainable” would be a written decision from the China notary explaining why the NBC was denied and that the grounds for denial cannot be overcome. Unfortunately, Chinese law does not require notaries to issue such certifications, and most notaries refuse to issue one.
In that case, the applicant must submit evidence of repeated good faith attempts to obtain the NBC.
Further, if the refusal is because you lack a required document for the NBC application, such as evidence of the circumstances of birth from the hospital, public security bureau, or a personnel file, you need to show that you unsuccessfully attempted to get such evidence from any entity that could have it.
The concept of a document being “unobtainable” is broader than being literally impossible to obtain. An NBC may be unobtainable “if it cannot be procured without causing to the applicant or a family member actual hardship as opposed to normal delay and inconvenience.” 22 C.F.R. § 42.65(d)(1). See 9 FAM 504.4-4(F)(a). Examples of actual hardship may include:
- The only person who could help obtain the document is an estranged or abusive family member who refuses to cooperate.
- Retrieving the document would require travel to another country at a cost that is prohibitive compared to the applicant’s financial situation.
- Situations where the applicant must apply in person but returning to the country would expose them to significant danger (e.g., political dissidents, asylum seekers).
C. Secondary Evidence of the Circumstances of Birth
If the NBC is unobtainable, the applicant must provide secondary evidence of the circumstances of their birth. 8 C.F.R. § 103.2(b)(2) (USCIS rules); 22 C.F.R. § 42.65(d)(1) (State Dep’t rules).
This could include, for example:
- The household register (户口 hukou)
- Family planning certificate (计划生育服务证 jihua shengyu fuwu zheng) from the family planning bureau
- Old photographs
- School records
- Religious records (e.g., a baptismal record)
- Medical records
- If the applicant left China at a young age to a third country or region, that place’s immigration records may also be helpful (e.g., Hong Kong Certificate of Registered Particulars).
- Genealogical records compiled by overseas Chinese family associations
- Birth certificate issued by overseas embassy or consulate of the People’s Republic of China or, Certificate of Registration issued to overseas Chinese by an embassy or consulate of the previously, the Republic of China (pre-1949)
- USCIS files of family members to that reflect the claimed parental relationship
- A genealogist may be able to hunt down secondary evidence of birth. My China Roots, a leading genealogy research company specializing in helping Overseas Chinese trace their ancestry in China, can have their native researchers travel to the applicant’s hometown to search for family tree books (jiapu 家谱), ancestral graves, ancestral tablets, temples, and testimonies of relatives
.
D. Affidavits
Another form of evidence of the circumstances of your birth is affidavits from individuals with personal knowledge of the circumstances of your birth (e.g., your date and place of birth, your name, and your parents’ names).
According to USCIS rules, if persuasive secondary evidence cannot be obtained, the applicant must “submit two or more affidavits, sworn to or affirmed by persons who are not parties to the petition who have direct personal knowledge of the event and circumstances.” 8 C.F.R. § 103.2(b)(2). See 1 USCIS-PM E.6(B); 7 USCIS-PM A.4(B)(3).
The State Department takes a slightly different approach. Secondary evidence and affidavits are grouped together as “other evidence” that may be satisfactory if the NBC is unobtainable. 22 C.F.R. § 42.65. In other words, while USCIS will only consider affidavits if satisfactory secondary evidence is unobtainable, the State Department will consider all “other evidence” together.
E. Working with Chodorow Law Offices
Our law firm office can apply on your behalf for a China notarial birth certificate (NBC). And, if the application is denied for reasons that cannot be overcome, we can gather and submit evidence to USCIS or the State Department that the NBC is unobtainable, along with secondary evidence and affidavits proving the circumstances of your birth.
For details about how to schedule a consultation, see Working with Chodorow Law Offices.
Many clients seek out our firm after USCIS issues a request for evidence (RFE) or the Consulate notifies them they need to submit additional evidence. That’s fine. But to avoid tight timelines you can also proactively contact our firm earlier in your case.
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